Archive | Right to carry

For those of who have been waiting for an English translation of Russia’s arms statutes, your wait is over. Independence Institute intern Margot van Loon is the author of the new Issue Paper, Weapons Laws of the Russian Federation. Here is a synopsis:

No permission or registration is needed to purchase and carry chemical defense weapons (e.g., tear gas guns) or electric defense devices such as stun guns.

Citizens have the right to acquire shotguns for self-defense and sport.

After five years of lawful ownership of a shotgun, a citizen may obtain a permit to purchase and use rifles for sporting purposes.

An individual may own up to five rifles and five shotguns.

Handguns are prohibited.

All firearms must be registered.

Before obtaining one’s first firearm, one must receive instruction in firearms laws and safety. Every five years, the firearms owner must pass a test demonstrating continuing knowledge of these subjects.

The first-time owner must also obtain a medical certification that he or she does not have any disqualifying conditions, such as mental illness or alcoholism.

In order to use a firearm for lawful self-defense, the crime victim must first attempt to give the criminal a warning, if practicable. Defensive use of firearms against women, the disabled, and minors is prohibited, unless they are attacking as part of a gang.

On the whole, the Russian Federation’s arms laws show considerably greater respect for the fundamental human right of self-defense than do the laws of some other European nations, such as the United Kingdom or Luxembourg.

The Russian Federation paper is part of continuing series of research papers from the Independence Institute providing full English translations of the arms laws of other nations. Other papers in this series are:

This is the subject of my article in a forthcoming symposium issue of the Fordham Urban Law Journal. The article details the political, cultural, social, and legal battles over gun control from the 1920s to the early 21st century. Here’s the abstract:

A movement to ban handguns began in the 1920s in the Northeast, led by the conservative business establishment. In response, the National Rifle Association began to get involved in politics, and was able to defeat handgun prohibition. Gun control and gun rights became the subjects of intense political, social, and cultural battles for much of the rest of the 20th century, and into the 21st.

Often, the battles were a clash of absolutes: One side contended that there was absolutely no right to arms, that defensive gun ownership must be prohibited, and that gun ownership for sporting purposes could be, at most, allowed as a very limited privilege. Another side asserted that the right to arms was absolute, and that any gun control laws were infringements of that right.

By the time that Heller and McDonald came to the Supreme Court, the battles had mostly been resolved; the Supreme Court did not break new ground, but instead reinforced what had become the American consensus: the Second Amendment right to keep and bear arms, especially for self-defense, is a fundamental individual right. That right, however, is not absolute. There are some gun control laws which do not violate the right, particularly laws which aim to keep guns out of the hands of people who have proven themselves to be dangerous.

In the post-Heller world, as in the post-Brown v. Board world, a key role of the courts will be to enforce federal constitutional rights against some local or state jurisdictions whose extreme laws make them outliers from

The first law school textbook on the Second Amendment is now available from Aspen Publishers. The co-author are Nick Johnson (Fordham), Michael O’Shea (Oklahoma City), George Mocsary (Connecticut), and me. Here’s the publisher’s page for the textbook, from which professors can request a free review copy. The book is also available for civilian purchase from Amazon.

We also have our own website for the book. There, you can read the detailed Table of Contents, and the Preface. The website is in an early stage of development; eventually, it will include detailed research guides and topic suggestions for students who are writing seminar papers. If you a professor and one of your students writes a seminar paper which makes a genuine contribution to knowledge about a topic, we invite you to send the us paper for publication on the website.

The textbook will have an accompanying Teacher’s Manual. We are currently finishing that up, and aim to have it available before the Fourth of July. (It’s free for professors who get a review copy, and forbidden for anyone else.)

Besides the 11 chapters in 1,008 pages of the printed book, there will also be four more on-line only chapters, available to purchasers of the printed book. These chapters will be: 12, Social science about firearms policy. 13, International law. 14, Comparative law. 15, A detailed explanation of firearms and their function. (Chapter 1 of the printed book provides a brief explanation of firearms and their function; the on-line chapter will go into much greater detail [e.g., what is a lever action gun?], and will have illustrations and photos.)

Finally, Firearms Law is the first law school textbook to be the subject of a podcast series. The published podcasts are: Chapter 3, The Colonies and the […]

Earlier today, Maryland federal district Benson Everett Legg decided the case of Woollard v. Sheridan. Plaintiffs on the case are Robert Woollard and the Second Amendment Foundation. The lead attorney for plaintiffs is Alan Gura, the winning attorney in D.C. v. Heller and McDonald v. Chicago.

As explained in the district court’s Dec. 2010 ruling, rejecting a motion to dismiss:

Plaintiff Woollard initially obtained a handgun carry permit after he was assaulted by an intruder in his home in 2002. The permit was renewed in 2005. At that time, the intruder had recently been released from prison, providing a “good and substantial reason” for Woollard to carry a firearm. In 2009, Woollard again sought to renew his permit so that he could carry a handgun for self defense. MSP Secretary Sheridan denied Woollard’s application, however, because Woollard failed to provide sufficient evidence “to support apprehended fear.”

At issue in the case is the Maryland statute which says that the Secretary of the State Police can issue a carry permit if the applicant “has good and substantial reason to wear, carry, or transport a handgun, such as a finding that the permit is necessary as a reasonable precaution against apprehended danger.” Md.Code Ann., Pub. Safety § 5-306(a)(5)(ii).

In today’s decision on the merits, the “good and substantial reason” requirement was ruled to violate the Second Amendment. The court held that the Second Amendment right is not limited to self-defense in the home. It also includes the militia and hunting. None of the Second Amendment rights can logically be confined solely to the home: “In addition to self-defense, the right was also understood to allow for militia membership and hunting. To secure these rights, the Second Amendment‘s protections must extend beyond the home: neither hunting nor militia training is a household […]

A few weeks ago, the New York Timesreported that the NY Police Department was working with the Department of Defense on a remote firearms detector. According to the article, the detectors are presently effective at a 3 to 5 meter range at finding guns that are being carried concealed. The objective is to improve the detectors so that they work from a distance of 25 meters.

Commentators, what do you think of this? Does is raise Fourth Amendment concerns? Second Amendment issues? Any other constitutional or policy questions? […]

According to the New York Times, the answer seems to be “yes.” An article in yesterday’s Times by Michael Luo collects some anecdotes about misbehavior by a few licensees in North Carolina. The Times article has some numbers in it, and it provides the number of North Carolinians with carry permits (240,000). After a thorough search of North Carolina records, the Times finds that about 1% of permitees were convicted of something, other than a traffic offense, over the past five years. Of these 2,400 convictions, by far the largest group is “nearly 900 permit holders were convicted of drunken driving, a potentially volatile circumstance given the link between drinking and violence.”

“Drunk driving” (which, I would guess, the Times uses as a shorthand for lesser offenses such as driving while impaired) is a serious crime in itself. But just because a woman has three glasses of wine with dinner at a restaurant, and then gets caught in a police checkpoint, doesn’t make her some “potentially volatile” person who is going to murder somebody in an inebriated rage.

In any large population (e.g., 240,000) there will be at least a small percentage who over a period of time are found guilty of some crimes. This does not mean that that population as a whole is dangerous. It would have been useful to compare the conviction rates of North Carolinians who have carry licenses with the convictions rates of those who do not. I suspect that the non-licensee crime rate would be much higher, especially for violent gun crimes.

In a 2009 article in the Connecticut Law Review, I collected data from Minnesota, Michigan, Ohio, Louisiana, Texas, and Florida. (The state data begin on page 564 of the article.) The data show that concealed carry licensees are much […]

Regarding Eugene Volokh’s post below about an NYU L. Rev. article, “The People” of the Second Amendment: Citizenship and the Right To Bear Arms. I just scanned the article, and there appears to be only a single footnote which directly cites any state statutes from before 1800. Note 125, accurately cites standard statutory compilations from Massachusetts and Connecticut for laws against selling firearms to Indians. Although the author is apparently unaware that by 1661 (Connecticut) and 1688 (Massachusetts) the laws were changed to allow gun sales (and even gun carrying in towns) by friendly Indians. The article suffers very severely from its near-exclusive reliance on secondary sources for the pre-1800 period, especially since some of those sources are highly tendentious.

To summarize the information from Chapter 3 of my forthcoming textbook Firearms Law and the Second Amendment: Regulation, Rights, and Policy (Aspen Publishers, available in late Jan. 2012) regarding American law pre-1800:

Women: No restrictions. Of course they did not serve in the militia. Laws requiring “householders” (whether or not they were in the militia) to have arms were common, and these usually included a woman who was the head of the house (e.g., a widow).

Free blacks: Some states had no restrictions, some states had bans on their owning guns. Free blacks served in some state militia, not in some other states, and in some states policies changed depending on military necessity. They were excluded from the federal militia by the Second Militia Act of 1792.

Slaves: Several states banned gun ownership, or allowed ownership only with the master’s permission.

Poor whites: To claim that they were excluded from gun ownership or from militia service is absurd. There were absolutely no property or wealth restrictions on gun ownership, nor on service in the militia. To the contrary, many […]

By a vote of 272 to 154. (The vote on the motion to recommit was 161 to 263). On the final vote, 44 Democrats voted in favor, and 7 Republicans voted against. H.R. 822 now goes to the Senate. In the previous Congress, a broader bill on interstate carry was narrowly defeated by a filibuster led by Sen. Charles Schumer. Of course whether the bill ever comes up for a vote in the Senate is up to Majority Leader Harry Reid.

In September, I testified before the House Judiciary Committee’s Subcommittee on Crime, Terrorism, and Homeland Security, in support of the bill. My testimony focused mainly on the Congress’s constitutional authority to pass the bill under the powers granted by section 5 of the 14th Amendment. Among the explicit purposes of the 14th Amendment was to give Congress the power to enact legislation protecting the right to interstate travel, which is one of the Privileges or Immunities of citizens of the United States. My written testimony is here. A video of the subcommittee hearing is here. And here’s short podcast on the subject, with Cato.

An excellent graph at No Lawyers, Only Guns and Money, shows the story. We’ve come a long way, baby.

And there’s still a long way to go. In Illinois, the right to carry is completely forbidden by law. In eight other states, handgun carry licensing laws are highly arbitrary. With a few exceptions (e.g., upstate New York, rural California, 2 of the 3 counties in Delaware), in those state rights are routinely denied, so “may issue” amounts to “will not issue.” It is not acceptable that nearly one-third of the nation is still denied a fundamental civil and natural right. […]

Today the U.S Court of Appeals for the D.C. Circuit released a divided opinion in Heller v. D.C. . In this case, Dick Heller (of the Supreme Court’s Heller decision) is challenging the Firearms Registration Amendment Act of 2008 (FRA), a statute adopted by the District of Columbia in response to the Supreme Court’s decision invalidating the District’s prior gun controls. Whereas Heller had prevailed in the D.C. Circuit before, this time he was not so lucky. The panel majority, consisting of Judges Ginsburg and Henderson, largely rejected his challenge to D.C.’s ban on some semi-automatic rifles and new gun-registration requirements. Judge Kavanaugh wrote a lengthy dissent. […]

Currently before the Illinois Supreme Court is People v. Aguilar, which raises the question of whether Illinois can, consistently with the Second Amendment, prohibit the carrying of firearms for lawful self-defense in public places. Illinois is the only state with such a blanket prohibition. Illinois state law bans open and concealed carry, and has no procedure for licensing either. The only people allowed to exercise the right to defensive carry are persons in some specially-favored categories, such as elected officials and security guards.

Oklahoma City Univ. law professor Michael O’Shea has written an amicus brief in the case, on behalf of co-authors of the forthcoming law school textbook Firearms Law and the Second Amendment(Aspen, 2012). O’shea’s co-authors Nicholas Johnson (Fordham) and I both made some suggestions for the brief, but the vast majority of the work was done by O’Shea. As the brief demonstrates, McDonald and Heller make it clear that the Second Amendment protects a right to carry arms (except in “sensitive places”). The brief does not argue in favor of a particular system for licensed or unlicensed carry. Rather, our point is that a complete prohibition is facially unconstitutional; there is no need to get into the standard of review issues that would be involved in a regulation (as opposed to a complete prohibition) of the exercise of the right to bear arms. […]

On Tuesday I testified before the U.S. House subcommittee on Crime, Terrorism, and Homeland Security, regarding H.R. 822, which would set up a national system of interstate reciprocity for concealed handgun carry permits. My 24-page written testimony is here. The video of the subcommittee hearing is about and hour and 45 minutes. Nearly all members of the 21-member attended the hearing, and used their opportunity to ask 5 minutes worth of questions. Most of the questions posed to George Mason Law’s Prof. Joyce Malcolm, Philadelphia Police Commissioner Charles Ramsey, and me, were quite thoughtful. Some congressional hearings are just a form of kabuki theater, but in Tuesday’s hearing, Representatives of both parties, and on both sides of the gun issue, seemed to be sincerely trying to learn more. The bill currently has 243 House co-sponsors. […]

Chris Moody attempts to analyze the issue for The Ticket. The analysis could have been improved by reading the laws of the District of Columbia.

Moody describes D.C. as “a city that bans carrying firearms.” That’s not exactly correct. The D.C. Code generally prohibits carrying a firearm “without a license issued pursuant to District of Columbia law.” D.C. Code § 22-4504. It is true that in practice, the D.C. government virtually never issues carry licenses to citizens. However, the Code makes various exceptions to the license requirement, including that “The provisions of § 22-4504 shall not apply . . .to officers or employees of the United States duly authorized to carry a concealed pistol . . .” § 22-4505(a).

Thus President Perry could simply authorize himself to carry a concealed pistol. For good measure, he could likewise authorize the entire White House staff, or indeed every single employee of the United States government, to also carry a concealed pistol in D.C.

As the Moody article points out, President Perry could ask the D.C. police to deputize him, in order to take advantage of the D.C. law allowing the police to carry guns, but President Perry would have no practical need to ask the D.C. police to use their discretion to grant him the ability to do something he can do without their permission anyway.

UCLA’s Adam Winkler suggests that President Perry could issue an Executive Order authorizing him to carry. Executive Orders can apply solely to the Executive Branch of the federal government. An Executive Order could be one mechanism (although certainly not the only one) by which President Perry could “duly authorize[]” gun carrying by himself or Executive Branch employees. However, if the D.C. Code did not have the exception for federal employees, then it’s doubtful that an Executive […]